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U.S. v. HOLLAND

December 7, 2005.

UNITED STATES OF AMERICA, Plaintiff
v.
HARVEY HOLLAND, Defendant.



The opinion of the court was delivered by: WILLIAM CALDWELL, Senior District Judge

MEMORANDUM

I. Introduction

The Defendant, Harvey Holland, filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. In a memorandum and order dated February 18, 2005, we denied three of his claims and scheduled a hearing to address the remaining claims. A hearing was held on June 22, 2005. This memorandum addresses the remainder of the Defendant's claims.

  II. Background

  On June 6, 2002, following a jury trial, the Defendant was convicted of distribution and possession with intent to distribute fifty grams or more of crack cocaine in violation of 21 U.S.C. § 841 (a) (1) and 18 U.S.C. § 2 (Count II) and conspiracy to distribute and possess with the intent to distribute fifty grams of more of crack cocaine in violation of 21 U.S.C. § 846 (Count V). The Defendant was sentenced to concurrent terms of life imprisonment on both counts,*fn1 five years supervised release on all counts, an assessment of $200, and a fine in the amount of $4000. Holland had also been charged with the murder of Jason Harrigan. However, the jury was unable to reach a verdict on that count and a mistrial was entered at the request of the Government.

  Holland appealed his conviction. The Defendant's appeal was denied by the Third Circuit on September 30, 2003. United States v. Holland, 76 Fed. Appx. 452 (3d Cir. 2003) (Holland I). Holland petitioned for certiorari to the United States Supreme Court and on January 12, 2004, certiorari was denied. Holland v. United States, 540 U.S. 1135, 124 S. Ct. 1114, 157 L. Ed. 2d 942 (2004). On October 18, 2004, the Defendant initiated these § 2255 proceedings pro se. In response to our order under United States v. Miller, 197 F.3d 644 (3d Cir. 1999), he moved to amend his motion. We allowed him to amend and directed the Government to file a response. The Government requested a hearing in order to fully address the motion. In our February 18, 2005 order, we addressed several of the Defendant's claims,*fn2 appointed counsel for the Defendant, and scheduled a hearing on the following claims: (1) that counsel was ineffective for failing to conduct a pre-trial investigation; (2) that counsel was ineffective for failing to interview, investigate, and cross-examine witnesses; (3) that counsel was ineffective for failing to investigate the pre-sentence report to correct mis-statements of fact; (4) that the trial court abused its discretion at sentencing by assuming the truthfulness of statements made at sentencing and that counsel was ineffective for failing to address these inconsistencies; (6) that counsel was ineffective for failure to inform the Defendant of a possible plea bargain; (7) that counsel was ineffective at trial and on appeal for failing to object to errors made by the court when charging the jury, including the failure of the court to properly record sidebars; and (8) that counsel was ineffective at trial and on appeal for failing to object to the Government's use of co-conspirators' guilty pleas as substantive evidence of the Defendant's guilt.

  A hearing was held on June 22, 2005. The parties have filed post-trial briefs and the remainder of Defendant's claims are now ripe for disposition.

  III. Ineffective assistance of counsel

  The majority of Holland's claims allege ineffective assistance of counsel. These claims are governed by the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Strickland held that an ineffective assistance of counsel claim requires the petitioner to show: (1) that his counsel's performance fell below an objective standard of reasonableness; and (2) that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064. The reasonableness of counsel's conduct must be judged in light of the facts of the particular case at the time of the event. Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. In analyzing that performance, the court must make every effort "to eliminate the distorting effects of hindsight," and determine whether "in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id.

  Once it is found that counsel's performance was deficient, the court must determine if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

  A. Pre-trial investigation

  The Defendant's first claim is that trial counsel was ineffective for failing to conduct a pre-trial investigation. Specifically, Holland argues that had counsel conducted a thorough pre-trial investigation, he would have informed the jury that the Defendant was incarcerated during the majority of the drug conspiracy. The indictment charged Holland with conspiracy to distribute and possess with the intent to distribute fifty grams or more of crack cocaine and alleged that the conspiracy began on or about January 1, 1997 and continued through the end of April 2001. The Defendant was incarcerated in New Jersey from July 15, 1997 until July 20, 1998. (Doc. 337, Hearing Tr., Def. Ex. 1). He further asserts that he was arrested on September 12, 2000, and held until his trial. However, the Defendant's pre-sentence report indicates that he was arrested on September 15, 2000, September 24, 2000, January 4, 2001, February 21, 2001, and February 28, 2001, for various offenses committed during those months. As a result, we cannot accept Holland's assertion that he was continually incarcerated during the later part of the conspiracy.

  At the hearing, Defendant's trial counsel testified that although he was aware that Holland was incarcerated for certain periods during the drug conspiracy, he did not want to present testimony to the jury about burglaries and robberies because of the murder charge. (Doc. 337, Hearing Tr. p. 29). He feared that the jury may infer that those types of crimes were crimes of violence and conclude that violence was consistent with Holland's character. (Id.). He also testified that the evidence presented at trial was not inconsistent with the theory that even though the Defendant was incarcerated at some point during the conspiracy, he still participated. (Id. at 29-30). Further, since Holland was not going to testify, counsel's strategy was not to tell the jury about the previous convictions. (Id. at 30-1).

  The Defendant was incarcerated for a year at the beginning of the conspiracy and then intermittently after September 12, 2000. However, for a majority of the conspiracy, he was not in prison. We fail to see what benefit he would have derived from the presentation of an imperfect alibi to the jury. Given that Holland was on trial for not only a drug conspiracy, but also a murder, it was a reasonable tactical decision for ...


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